Articles for John A Kvinge

The Minnesota legislature passed sweeping new amendments to statutes which create criminal penalties for the failure to pay wages and impose requirements for employers to document the terms of employment with their employees.

Contractors who bid on federal contracts, or subcontract for businesses that do should be aware of new disclosure requirements that will be implemented this fall President Obama’s Fair Pay and Safe Workplaces executive order will significantly impact how contractors do business and bid on federal contracts.

Last year, the United States Department of Labor (DOL) announced that it was increasing its enforcement activities regarding misclassification of employees as independent contractors. Minnesota construction companies that have misclassified their employees might now be forced to pay back wages (including any overtime pay), additional taxes, and other penalties as a result of the misclassification. Any business that regularly pays individuals as independent contractors should carefully examine the nature of the working relationship, and ensure that proper classifications are made going forward.

Medtronic v. NuVasive is a patent infringement case involving a Medtronic device which monitors nerve activity during spinal surgery. NuVasive claims that the device can be used to infringe its patent, U.S. Pat No. 7470236, and that Medtronic was liable for indirect infringement on the grounds that it instructed doctors how to use the product in an infringing manner.

1) Even if you aren’t selling in China, you may need to register your trademark

Some companies have chosen not to register their trademarks in China, on the assumption that it is unnecessary if they don’t plan to sell their products in the Chinese marketplace, even though their products are manufactured in China. These same companies have been caught flat-footed when their products are manufactured in China for export and resale elsewhere.

Internships provide an excellent opportunity for students to obtain hands-on experience and acquire practical skills from employers in their chosen field. An internship can also provide students with references and networking contacts that will help them obtain their dream job. However, for unwary employers, hiring unpaid interns can create unanticipated legal headaches. The problem is that some employers classify any temporary employee who is also a student as an intern, and frequently believe that they can pay interns a nominal stipend for a summers’ work, or nothing at all. The Department of Labor has a very narrow set of criteria for qualified unpaid internships, and has made enforcement actions against companies that do not comply a priority in recent years. This article examines the requirements for a legal unpaid internship, describes some recent enforcement actions, and provides some suggestions for employers looking to minimize the risk of a wage and hour law violation.

The Supreme Court previously held in Quality King Distributors v. L’anza Research Int’l, Inc. that the first sale doctrine covers the foreign sale of a work that was printed in the United States. The Supreme Court left unanswered whether a book that was both printed and sold abroad qualifies as a work “lawfully made under” the Copyright Act. In Kirtsaeng v. John Wiley & Sons, Inc., the Supreme Court considered this question, and held that the first sale doctrine covers copyrighted works that are both printed and sold abroad.

Starting January 1, 2014, most employers will be prohibited from requiring applicants to disclose their criminal history on an initial employment application. This so-called “ban the box” legislation has applied to public employers in Minnesota since 2009, and was recently expanded to private employers by legislation signed by Governor Dayton on May 15, 2013.

On March 8, 2013, The United States Citizenship and Immigration Services released a new version of Form I-9, which employers must use to verify identity and employment eligibility for all new employees. All employers must begin using the new version of Form I-9 no later than May 7, 2013.

A Federal Circuit case in the last few months addressed the question of whether the six-year period for the presumption of laches begins running prior to the issuance date of the patent, if the unnamed inventor should have known prior to issuance that he or she was not named as an inventor in the patent application. The case, Hor v. Chu, Case No. 2011-1540, involved a patent for high-temperature superconducting materials.

The Supreme Court case, Already, LLC v. Nike, Inc., questioned whether a plaintiff can eliminate a defendant’s standing to challenge the validity of a trademark by giving the defendant a permanent covenant not to sue – essentially eliminating the chance that the defendant could ever be harmed by the existence of a trademark.

On November 26, 2012, the United States Supreme Court heard arguments related to the definition of a “supervisor” under Title VII. Under Title VII, an employer can be found liable for a hostile work environment caused by severe or pervasive harassment in the workplace based on race. If the harassment was inflicted by co-workers, the plaintiff must show that the employer was negligent in discovering or remedying the harassment. However, employers are strictly liable for harassment perpetrated by supervisors. The question in many cases, then, is whether an alleged harasser is a supervisor, or merely a co-worker.

At least 46 states have enacted some version of the Uniform Trade Secrets Act, which provides protection for information that “derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use.” The Uniform Trade Secrets Act allows the owner of a trade secret to bring a lawsuit for misappropriation against someone who uses a trade secret obtained through improper means.

On March 20, 2012, the United States Supreme Court issued its ruling in Mayo Collaborative Services v. Prometheus Laboratories, Inc., 566 U.S. ___ (2012). At issue were two patents covering the use of thiopurine drugs to treat autoimmune conditions such as Crohn’s disease. The Supreme Court concluded that the claims were impermissible attempts to patent a natural law, and held the patents invalid.

In Minnesota, most actions for breach of an employment contract are governed by the two-year statute of limitations set forth in Minn. Stat. § 541.07(5). This means that employees have two years from the date of the alleged breach of contract to file a lawsuit. In Park Nicollet Clinic v. Hamann, ___ N.W.2d ___, 2011 WL 6057981 (Minn. 2011), the Minnesota Supreme Court was faced with the question of whether each paycheck issued after a breach resets the two-year time period for bringing a claim.

A patent on a key technological advance can convey significant market power, but only if you can ensure that your competitors are prohibited from using your invention without permission and payment. Plaintiffs in patent infringement cases frequently seek damages for lost profits and award of reasonable royalties, but one of the most powerful awards is a permanent injunction.

It is every company’s worst nightmare. After carefully registering a trademark for your flagship product or service, a rival comes along and chooses a dangerously similar name for their competing offering. You may believe that their infringing use of your protected mark is creating confusion in the marketplace and costing you sales, but how do you prove it in a way that will hold up in court? The relatively recent widespread adoption of the internet has created an option that is rapidly gaining traction in federal courts: online consumer surveys.